The Complex World of Unfair Promotion Matters

Our Client who is employed by a large parastatal applied for an internal position. He was thereafter told that he was ranked first by the interviewing panel after the interviews had taken place.

Soon thereafter it came to his attention that another Employee had lodged a complaint with the CEO directly, which was against Company policy as there was a line of management levels that had to be used in order for it to be classed as a valid complaint. A related problem was that it was only referred to as a complaint, not a formal grievance. As a result of her complaint regarding not being shortlisted for the interviews, she was afforded the opportunity to be interviewed, which she duly was whilst our Client happened to be on leave. After the Company held her interview, this candidate was appointed into the advertised position. This candidate had not initially been shortlisted because she did not have the necessary job requirements.

Our Client, with our assistance, lodged a formal grievance in line with the Grievance Policy. The matter was investigated and there were irregularities found to have occurred during the whole process and the Company therefore decided to re-start the process all over again. This may sound like a win for our Client, however a win would have been for him to be appointed in the position in line with what Client believed to be true; that the panel had actually found him to be most suitable for the position before the other employee had been interviewed, as a result of her complaint. As an aside, our Client had acted in the position previously however it must be said that this fact never guarantees that the same candidate will be successful when applying for the position to be filled permanently.

We advised our Client in terms of the case below.

The School Governing Body, Leicester Road School and Another v The Member of Executive Council: Education Gauteng and 3 Others case number (19121/2016) [2016] ZAGPJHC 200 (15 July 2016)

The matter dealt with a deputy principal, Ms. Gaspari, who was at the time of the interviews the acting Principal, as the previous principal had resigned in March 2015. She then applied for the job of Principal when the opportunity arose. In 2015 the school did conduct a process of appointing a new Principal and although Ms. Gaspari’s name was one of the three shortlisted, the sub-committee appointed Mr. Ramafalo as Principal.

As luck would have it, Mr. Ramafalo was only in the position for a day, wherein he resigned to take another job he had been offered. Through further processes thereafter Ms. Gaspari learnt that she had not been shortlisted by the selection committee to attend the new interviews.

Being very dissatisfied, Ms. Gaspari through various channels lodged a letter of complaint in which she claimed that the chairperson of the relevant selection committee, Ms. Mileder had been biased against her. The other 3 Respondents agreed that she had been discriminated against, saying that because she had been in the acting position before, she had been shortlisted previously and recommended, yet on the second occasion she was not even shortlisted.

Her letter brought about a grievance meeting where Ms. Mileder and the chairperson of the School Governing Body (SGB) at the time, Mr. Sherman attended. Herein Ms. Mileder presented copies of all the relevant information in respect of the panel’s shortlisting and recommendations. She went further to explain how there had been compliance with the Gauteng Department of Education (GDE) guidelines.

It was discovered that the meeting had carried on and the panel had made findings after Ms. Mileder and Mr. Sherman had left the selection committee meeting. The District Grievance Committee (DGC) recommended that the grievance lodged by Ms. Gaspari be upheld and that a new independent panel be selected to carry out the process de novo as there had been a substantial flaw in the shortlisting process.

The Applicants requested reasons for the GDE’s decision [to uphold the grievance and have the process start over] and also said that they deemed the decision to be unreasonable and reviewable.

The Court found that the decision was not reasonable and that the panel had been fair in their decision-making processes.

What is important to note is that the Judge explains that the decision taken that the grievance process had been flawed and that the decision to re-start the entire process was made, meant in effect that the actual shortlisting process was set side.

In our Client’s case, this meant that we could apply to Court to have the panel’s decision to accept the non-shortlisted Employee’s complaint and subsequent granting of an interview, set aside. It would require us to show how the Employer’s processes were flawed. We could argue that the complainant Employee did not 1) lodge her concern as a formal grievance but rather just a complaint as well as 2) the fact that she did not do so by referring it step by step to the applicable levels of management, in terms of the grievance procedure. As is clear, her complaint should never have been allowed/considered by the Employer, unless it had been through the correct channels, as our Client’s had.

This means that there were procedural defects in respect of the process the complainant Employee followed as well as defects in the process of interviewing her, on the part of the Employer. The Employer’s decision to re-start the process was also defective and they would have to show what powers they had to deviate from the normal shortlist, interview and appointment processes in respect of a promotion. We would argue that there should be a setting aside of the second round of interviews and that as a result, the real shortlist and final recommendation(where our Client ranked no. 1) should be reverted back to.

Just as Ms. Gaspari did not meet the threshold set by the selection committee, so too was the case with the complainant Employee. She did not meet the requirements of the job in the advert and therefore naturally did not, in reality, qualify for an interview.

We would however also need to show that the shortlist had definitely been finalised before they interviewed her, because just like in Ms. Gaspari’s case where they had already decided on their top three candidates after shortlisting eleven applicants, we would want to show that if the final decision had already been taken by the panel, then the complainant Employee’s interview should never have been granted, let alone her be appointed.

We believe that our Client’s matter may well be reviewable under the Promotion of Access to Justice Act (PAJA).

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